Citation Nr: 1137515
Decision Date: 10/05/11 Archive Date: 10/11/11
DOCKET NO. 09-45 852 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska
THE ISSUES
1. Whether new and material evidence has been submitted to reopen a claim for service connection for a bilateral hearing loss disability.
2. Whether new and material evidence has been submitted to reopen a claim for service connection for tinnitus.
3. Entitlement to service connection for a bilateral hearing loss disability.
4. Entitlement to service connection for tinnitus.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Arif Syed, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1957 to June 1961.
This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which declined to reopen the Veteran's claims of entitlement to service connection for bilateral hearing loss disability and tinnitus.
In April 2011, the Veteran presented sworn testimony at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. Additionally, evidence has been associated with the Veteran's claims folder included with a waiver of RO consideration.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. An unappealed May 2005 rating decision denied service connection for a bilateral hearing loss disability and tinnitus.
2. The evidence received since the May 2005 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claims for service connection for a bilateral hearing loss disability and tinnitus.
3. The Veteran has been shown to currently have a bilateral hearing loss disability that is related to his military service.
4. The Veteran has been shown to currently have tinnitus that is related to his military service.
CONCLUSIONS OF LAW
1. The May 2005 rating decision denying service connection for a bilateral hearing loss disability and tinnitus is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010).
2. Since the May 2005 rating decision, new and material evidence has been received with respect to the Veteran's claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus; therefore, the claims are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010).
3. Resolving the benefit of the doubt in the Veteran's favor, the Veteran's currently diagnosed bilateral hearing loss disability was incurred in military service. 38 U.S.C.A. §§ 1101, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010).
4. Resolving the benefit of the doubt in the Veteran's favor, the Veteran's currently diagnosed tinnitus was incurred in military service. 38 U.S.C.A. §§ 1101, 1131 (West 2002); 38 C.F.R. § 3.303 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran seeks entitlement to service connection for a bilateral hearing loss disability and tinnitus. Implicit in his claims are the contention that new and material evidence which is sufficient to reopen the previously-denied claims have been received.
Although the RO reopened and denied the Veteran's claims in the November 2009 statement of the case (SOC), the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the Veteran that may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) [before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant]; see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) [the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim].
The Board will first discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered.
The Veterans Claims Assistance Act of 2000
The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002).
A VCAA notice letter was sent to the Veteran regarding his service connection claims in September 2009. This letter appears to be adequate. The Board need not, however, discuss in detail the sufficiency of the VCAA notice letter in light of the fact that the Board is granting the claims. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefit sought on appeal.
The Board further notes that the Veteran received proper notice as to degree of disability and effective date in the above-referenced September 2009 VCAA letter, as required by the decision of the United States Court of Appeals for Veterans Claims (the Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006).
As discussed below, the Board is reopening the Veteran's claims and granting the service connection claims. It is not the Board's responsibility to assign a disability rating or an effective date in the first instance. The RO will be responsible for addressing any notice defect with respect to the assignment of an initial disability rating and/or effective date when effectuating the award, and the Board is confident that the Veteran will be afforded appropriate notice under Dingess. Accordingly, the Board will proceed to a decision on the merits as to the issues on appeal.
Service connection for a bilateral hearing loss disability and tinnitus
Because the outcome as to both issues involves the application of virtually similar law to identical facts, the Board will address the two issues together.
Pertinent legal criteria
Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010).
For certain chronic disorders, including sensorineural hearing loss disability, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2010).
In order to establish service connection for the claimed disorder, there must be
(1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).
Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).
The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2010). For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000. or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2010).
In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2010).
In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.
New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2010).
An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).
In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary's duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim.
After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2010).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Claim to Reopen
In the May 2005 rating decision, the RO denied the Veteran service connection for a bilateral hearing loss disability and tinnitus. In rendering its decision, the RO indicated that "although you have a current bilateral hearing loss, it is not likely that this condition is due to military service." The RO further stated "although you have tinnitus, it is not likely that this condition is due to military service." The Veteran was informed of the May 2005 rating decision and of his appeal rights by a letter from the RO dated in May 2005. Although he filed a timely notice of disagreement, he did not complete his appeal with the filing of a substantive appeal [VA Form 9 or similar]. The May 2005 rating decision therefore became final.
At the time of the May 2005 rating decision, the pertinent evidence of record included the Veteran's service treatment records, Air National Guard records, and a VA examination dated in April 2005. His service treatment records during his period of active duty, to include his April 1961 separation examination, were absent any complaints of or treatment for either a bilateral hearing loss disability or tinnitus. Air National Guard records dated in July 1977 and June 1980 noted decreased auditory acuity bilaterally and records dated in July 1984, May 1988, and May 1992 documented diagnoses of bilateral high frequency hearing loss. Further, a VA examination report dated in April 2005 indicated diagnoses of sensorineural hearing loss bilaterally and tinnitus. After examination of the Veteran and review of his medical history, the VA examiner concluded "it is not likely that the [V]eteran's hearing loss and tinnitus is due to his military service. It is likely that at least a portion of the [V]eteran's hearing loss and tinnitus is due to his work as a civil servant for the Air National Guard."
In August 2009, the Veteran requested that his claims be reopened. After the RO determined that new and material evidence had not been submitted to reopen the Veteran's claims in the May 2005 rating decision, this appeal followed. The evidence added to the record since the May 2005 rating decision consists of the Veteran's statements as well as a private treatment audiological evaluation dated in October 2009. This evidence will be analyzed below.
The RO denied the Veteran's claims in 2005 because the evidence did not indicate a relationship between the Veteran's diagnosed bilateral hearing loss disability and tinnitus and his military service. The unappealed May 2005 rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). As explained above, the Veteran's claims for service connection may only be reopened if he submits new and material evidence. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). Therefore, the Board's inquiry will be directed to the question of whether any additionally submitted [i.e., after May 2005] evidence bears directly and substantially upon the specific matter under consideration.
In reviewing the evidence added to the claims folder since the May 2005 denial, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran's claims, specifically evidence demonstrating a relationship between the Veteran's bilateral hearing loss disability and tinnitus and his military service.
In particular, C.F., Au.D., noted in an October 2009 private treatment record that "it is quite likely that the noise exposure [the Veteran] suffered during his military service was the beginning of his hearing loss and tinnitus."
In short, the additionally submitted evidence showing a relationship of the Veteran's current bilateral hearing loss disability and tinnitus to his military service serves to fulfill the crucial, but heretofore missing, element of medical nexus. As such, this evidence is so significant that it must be considered in order to fairly decide the merits of the claims. Accordingly, the Board concludes that new and material evidence pertaining to the existence of a relationship of a bilateral hearing loss disability and tinnitus to military service has been submitted. The Veteran's claims for entitlement to service connection for a bilateral hearing loss disability and tinnitus are reopened.
The Board has reopened the Veteran's claims and is considering moving forward to discuss the claims on its merits. Before doing so, however, the Board must consider certain procedural concerns. The first concern centers on the case of Bernard v. Brown, 4 Vet. App. 384 (1993). The second concern involves the statutory duty to assist, which comes into play at this juncture. The third concern is the standard of review which the Board must employ in de novo decisions.
In Bernard v. Brown, 4 Vet. App. 384 (1993), the Court held that when the Board addresses a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument and an opportunity to address the question at a hearing, and whether the claimant has been prejudiced by any denials of those opportunities. Because the Board is granting the Veteran's claims, there is no prejudice to the Veteran in the Board's consideration of his claims on the merits.
Claim for Service Connection
The Veteran is claiming entitlement to service connection for a bilateral hearing loss disability and tinnitus, which he contends is due to his military service. See, e.g., the Veteran's notice of disagreement dated in November 2009.
As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra.
As to Hickson element (1), it is undisputed that the Veteran is currently diagnosed with a bilateral hearing loss disability and tinnitus, as is evidenced by the report of the April 2005 VA audiological examination and a private treatment report from Dr. C.F. dated in October 2009. Puretone threshold during the April 2005 examination was in excess of 40 dB in each ear at 3000 Hz and 4000 Hz. Accordingly, the Veteran met the regulation criteria for a bilateral hearing disability under 38 C.F.R. § 3.385. Hickson element (1) is, therefore, satisfied as to both claims.
With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Board will address disease and injury separately.
Concerning in-service disease, a review of the Veteran's service treatment records during active duty reveals no evidence of a bilateral hearing loss disability or tinnitus. Although no audiological examinations are of record during the Veteran's period of active duty, his June 1957 enlistment examination and April 1961 separation examination indicate no significant abnormalities. Accordingly, Hickson element (2) is not met with respect to disease as to either claim.
With respect to in-service injury, the Veteran maintains that he developed a hearing loss disability and tinnitus due to noise exposure in service from working as an engine mechanic in the Air Force. See the April 2011 Board hearing transcript, page 3. The Veteran served on active duty from June 1957 to June 1961. His DD Form 214 reflects that the Veteran's military occupational specialty involved flight line maintenance duties. As indicated above, his service treatment records are negative for any history, treatment, or diagnosis of a hearing loss disability or tinnitus. Nonetheless, pursuant to the provisions of 38 U.S.C.A. § 1154(a), the Board finds that the circumstances of the Veteran's service, including military training as a flight line maintenance worker, would be consistent with exposure to loud noise in service. This is sufficient to satisfy Hickson element (2), in-service injury.
Turning to element (3), medical nexus, the record contains conflicting medical opinions which address the issue of medical nexus.
The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993).
Dr. C.F. reported in an October 2009 treatment record that "[i]t is quite likely that the noise exposure [the Veteran] suffered during his military service was the beginning of his hearing loss and tinnitus." His rationale was based on a review of the Veteran's service treatment records and his medical history, specifically the Veteran's history of in-service noise exposure, as well as an audiological evaluation of the Veteran.
In contrast to the above opinion, the April 2005 VA examiner reported that "in the presence of the [V]eteran's military noise exposure it is not likely that the [V]eteran's hearing loss and tinnitus is due to his military service. It is likely that at least a portion of the [V]eteran's hearing loss and tinnitus is due to his work as a civil servant for the Air National Guard." Her rationale was based on a review of the Veteran's claims folder, examination of the Veteran, and consideration of the Veteran's entire medical history.
Both the opinion of Dr. C.F. and the opinion of the VA examiner appear to have been based upon a thorough examination of the Veteran and thoughtful analysis of the Veteran's entire history and medical condition. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"].
Given both positive and negative nexus opinions of seemingly equal probative value, the Board finds that the evidence of record is in equipoise as to the matter of whether the Veteran's current bilateral hearing loss disability and tinnitus are related to his military service. The benefit of the doubt rule is therefore for application. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010). As such, element (3), and thereby all three elements, has been satisfied as to both claims.
In conclusion, for reasons and bases expressed above, the benefits sought on appeal, entitlement to service connection for a bilateral hearing loss disability and tinnitus, are granted.
ORDER
The claim for service connection for a bilateral hearing loss disability is reopened.
The claim for service connection for tinnitus is reopened.
Entitlement to service connection for a bilateral hearing loss disability is granted.
Entitlement to service connection for tinnitus is granted.
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DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs